Pennsylvania Avenue NHS, Demonstrations, National

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DEMONSTRATIONS, NATIONAL CELEBRATIONS, AND SPECIAL EVENTS

First Amendment gatherings and marches, national celebrations, and special events all draw CONTENTS crowds that may stand or sit on bleachers placed on the sidewalks to watch the events on the The Avenue’s Importance...... 1 street. Generally the avenue can sustain repeated NPS Regulations ...... 1 use because it is paved, as are the adjacent side- Regulating Public Use...... 1 walks. While DC manages the 100-foot-wide Recreational Activities...... 3 roadway, where many parades and activities Soliciting...... 3 occur, NPS manages the adjacent sidewalks and Sales...... 3 park areas. Permitting and managing activities NPS-Permitted Activities...... 3 with large crowds requires a great deal of First Amendment Activities ...... 3 coordination among many agencies and organi- Special Events ...... 3 zations to address circulation, health and safety, National Celebrations — Inaugural security and security checkpoints, and gathering Parades...... 4 and dispersal locations. (It should be noted that Commercial Filming and Photography4 Constitution Avenue is also used for many occa- Visitor Capacities...... 4 sions — typically for the Fourth of July, Colum- Number and Size of Events along bus Day, Memorial Day, and Veterans Day.) DC Pennsylvania Avenue ...... 6 permits a number of annual street events on the avenue, primarily from late spring through early fall. The Metropolitan Police permit First THE AVENUE’S IMPORTANCE Amendment activities. Pennsylvania Avenue has served as our country’s “main street” throughout its history. Because it NPS REGULATIONS links two branches of our government, repre- In the context of longstanding First Amendment sented by the U.S. Capitol and the White House, jurisprudence, and consistent with NPS it has historically been used for state occasions, regulations and policies that allow demonstra- such as inaugural parades, victory parades, and tions and sales activities under certain condi- state funeral corteges, as well as for public tions, as discussed below, demonstrations are marches to air grievances. In 1805 Thomas legally consistent with Pennsylvania Avenue Jefferson began the tradition of parades to mark NHS. the inauguration of a president. Armed forces have marched along the avenue to celebrate the Regulating Public Use end of a war; most prominent in this celebratory role was the two-day parade of the Grand Army CFR regulations apply to all federal agencies, of the Republic at the end of the Civil War. Since and certain regulations apply only to the admin- the 1894 march by Coxey’s Army to emphasize istration of the national park system. The Code the plight of unemployed workers, the avenue of Federal Regulations addresses public use has been frequently used as a public venue to air limits, which a park superintendent may estab- grievance and to seek redress from Congress. lish based on a determination that limits are The avenue has also been a focal point as we “necessary for the maintenance of public health mourn presidents, heroes, and people of note. and safety, protection of environmental and These uses are firmly entrenched in law and scenic values, protection of natural and cultural public perceptions of what the avenue means to resources, . . . or implementation of management the American public. responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities” (36 CFR 1.5).

1 DEMONSTRATIONS, NATIONAL CELEBRATIONS, AND SPECIAL EVENTS

Regulations at 36 CFR 7.96 contain provisions harm park resources and shall be removed as specific to the greater Washington, D.C., area, soon as practicable). Permits for demonstrations including Pennsylvania Avenue NHS. Demon- may be extended if space is available (36 CFR strations, special events, and national celebra- 7.96(g)(5)). The regional director may impose tions are defined as follows (36 CFR 7.96(g)(1)): reasonable restrictions on the use of temporary structures in the interest of protecting park • Demonstrations — The term includes areas, traffic, and public safety. demonstrations, picketing, speechmaking, marching, holding vigils or religious ser- Sound amplification equipment is allowed in vices, and all other like forms of conduct connection with permitted demonstrations or that involve the communication or expres- special events as long as it does not unreasonably sion of views or grievances, engaged in by disturb nonparticipating persons in, or in the one or more persons, the conduct of which vicinity of, the area (36 CFR 7.96(g)(5)(xii)). is reasonably likely to draw a crowd or onlookers. This term does not include General regulations for permitted activities casual park use by visitors or tourists which along Pennsylvania Avenue have evolved with is not likely to attract a crowd or onlookers. regard to reasonable time, place, and manner; • Special events — The term includes sports some of the regulations have been tested, events, pageants, celebrations, historical upheld, or modified through judicial pro- reenactments, regattas, entertainments, ceedings. In 2008 the NPS regulations for the exhibitions, parades, fairs, festivals, and National Capital Region were revised through a similar events (including such events pre- rule-making process to clarify how long events sented by NPS), which are not demonstra- could take place, including setup and takedown tions as previously defined, and which are times for presidential inaugural parades. Permits engaged in by one or more persons, the for demonstrations and special events are conduct of which has the effect, intent, or generally limited to four months (36 CFR 7.96(g) propensity to draw a crowd or onlookers. (4)(ii)). Demonstrations may be extended unless This term also does not include casual park another applicant’s use precludes double use by visitors or tourists which does not occupancy. have an intent or propensity to attract a The superintendent may take action necessary crowd or onlookers. to maintain public health and safety, to protect • National celebration events — The term environmental or scenic values, to protect means the annually recurring special events natural or cultural resources, or to implement regularly scheduled by the National Capital management responsibilities, equitable alloca- Region, including presidential inaugural tion and use of facilities, or the avoidance of ceremonies. conflict among visitor activities. Such actions may include limiting public use or closing areas Public gatherings or demonstrations involving to use; designating areas for specific uses; and more than 25 people within the National Mall terminating restrictions, limits, closures, or and Memorial Parks generally require a permit visitor hours (36 CFR 1.5; 36 CFR 7.96). issued by NPS. In addition, portions of Pennsyl- vania Avenue NHS are reserved for the exclusive Proposed permitted activities must be consistent use of the Presidential Inaugural Committee with legislation, administrative policies, and (PIC) on inaugural day (36 CFR 7.96(g) (4)(iii)) based on a determination that public health and and related setup and takedown. safety, environmental or scenic values, natural or cultural resources, scientific research, imple- Permit conditions for demonstrations and mentation of management responsibilities, special events include how long events may last; proper allocation and use of facilities, or the hours of operation to avoid unreasonable inter- avoidance of conflict among visitor use activities ference with rush-hour traffic; and allowance of will not be adversely affected (36 CFR 1.6; 36 temporary structures erected for the purpose of CFR 7.96(g)). Regulations at 36 CFR (4)(vii)(A)- symbolizing a message or meeting logistical (D) stipulate that a permit may be denied if: needs (such structures may not unreasonably

2 NPS-Permitted Activities

(A) a fully executed application for the same NPS-PERMITTED ACTIVITIES time and place has been received, and a permit has been or will be granted author- First Amendment Activities izing activities which do not reasonably The First Amendment to the U.S. Constitution permit multiple occupancy provides rights for freedom of speech and reli- (B) it reasonably appears that proposed dem- gion. First Amendment demonstrations are onstration or special event will present a permitted along Pennsylvania Avenue in accor- clear and present danger to the public dance with regulations at 36 CFR 7.96(g). Dem- safety, good order, or health onstrations expected to have more than 25 people are required to have a permit. NPS may (C) the proposed demonstration or special coordinate permitting with the United States event is of such a nature or duration that it Park Police. Activities taking place within the cannot be reasonably be accommodated avenue right-of-way also require a permit from (D) the proposed demonstration or special the DC Metropolitan Police. event is contrary to NPS regulations or other applicable law or regulation Special Events Additional factors for a proposed special event In accordance with NPS Management Policies (36 CFR 7.96(g)(5)(v)(A)–(E)) include whether 2006, special events may be permitted “when (1) its objectives and purposes relate to and are there is a meaningful association with the park within the NPS basic mission and responsibili- area and the event, and (2) the event will con- ties; whether it is reasonably suited in terms of tribute to understanding of the significance of accessibility, size, and nature; whether it can be the park area” (NPS 2006b, sec. 8.6.2.1). Special permitted within a reasonable budgetary alloca- events will be denied when they would result in tion considering its public appeal and antici- unacceptable impacts, such as (1) impeding the pated participation; whether it is duplicative of ability to achieve desired natural and cultural events offered in the area; or whether it is in resource conditions; (2) diminishing opportuni- conformity with all applicable laws and regula- ties for current or future generations to enjoy, tions. A permit may be denied if these regulatory learn about, or be inspired by park resources or factors exist. values; or (3) unreasonably interfering with park programs or activities, an appropriate use, the Recreational Activities atmosphere of peace and tranquility, or NPS concessioner or contractor operations (NPS Regulations pertaining to recreational activities 2006b, sec. 1.4.7.1). The park superintendent has allow ice skating only in designated areas and discretionary authority to allow and manage prohibit swimming (36 CFR 7.96(b)(4), 36 CFR authorized uses that will not cause impairment 7.96(e)). or unacceptable impacts, and the superintendent should consider presidential and congressional Soliciting interest and enabling legislation or proclama- Soliciting is allowed if under a permit (36 CFR tions (NPS 2006b, sec. 1.4.3.1). 7.96(h) as amended on March 7, 2013). Special events taking place within the Pennsyl- vania Avenue right-of-way must follow the Sales guidelines of the DC Mayor’s Special Events Task Group guidelines (2012), and organizers A permit is required for the sale or distribution must acquire permits through the Homeland of books, newspapers, leaflets, pamphlets, but- Security and Emergency Management Agency. tons, and bumper stickers from a stand or struc- Both John Marshall Park and Freedom Plaza are ture during a special event (36 CFR 7.96(k)). used as staging areas for parades, marches, walks, and runs that may take place within the avenue right-of-way. As a result, multiple permits are required to host many special events on Pennsylvania Avenue.

3 DEMONSTRATIONS, NATIONAL CELEBRATIONS, AND SPECIAL EVENTS

National Celebrations — Inaugural D.C.’s, monumental core as a ‘‘location in the Parades heart of our nation’s capital [which] makes it a prime location for demonstrations. It is here The most prominent national celebration occur- where Martin Luther King, Jr. delivered his ring on Pennsylvania Avenue is the quadrennial famous ‘I Have a Dream’ speech, where both Inaugural Parade. Federal regulations at 36 CFR sides of the abortion debate have staged their 7.96 were revised in 2008 to create (1) certain passionate demonstrations, and where on any regulatory priority designated areas for the PIC given day one may witness people gathering to for stands, bleachers, media, and parade support voice their public concerns.’’ (Friends of the structures for the Inaugural Parade, and (2) NPS Vietnam Memorial v. Kennedy, 116 F.3d 495, 496 regulatory priority designated areas for the PIC (DC Cir. 1997). NPS encourages all Inaugural and Armed Forces Inaugural Committee for Parade viewers to understand and respect the assorted stands, bleachers, media and parade exercise of First Amendment rights by others, support structures for the Inaugural Parade at and the U.S. Park Police will take enforcement seven specific park areas: Mellon Fountain, action only when there is a violation of the law. Indiana Plaza, U.S. Navy Memorial, National Archives Frontage, Benjamin Franklin Plaza, The final rule allows the PIC to place portable Freedom Plaza, and Pershing Park. The final rule public bathrooms at designated areas along the for viewing of the Inaugural Parade by the PIC is parade route. In addition, the final rule found at 73 Federal Register 67739–50 (NPS designates the traditional areas necessary for 2008d), and a correction at 75 Federal Register television, radio, and other media to broadcast 8806–7 (NPS 2010b). and report on the parade and related activities, as well as the traditional areas necessary for the The rule substantially reduces the area that in Armed Forces Inaugural Committee for parade the past that has been designated for PIC support structures for monitoring and managing bleachers. Under the rule, PIC bleacher areas the parade itself. along the parade route have now been reduced The setup and take-down times determined to 1,284 linear feet or 13% of Pennsylvania Ave- necessary under the rule are from November 1 nue that abuts the street, amounting to 63,936 through March 1 for the White House sidewalk square feet or 9% of Pennsylvania Avenue and and Lafayette Park, December 7 through Febru- the NHS. These designated areas for the PIC ary 10 for Pennsylvania Avenue, the NHS, and could accommodate 24 bleachers and 8,790 Sherman Park, and January 6 through January 30 ticket holders, based on the PIC’s 2005 setup. for the National Mall between 1st and 14th Because the final rule does not allocate to the Streets. PIC certain park areas that were allocated to the committee in past Inaugural Parades, the final Commercial Filming and rule substantially increases the park areas available to the public and to demonstrators. The Photography final rule also designates an area in front of the NPS issues permits for commercial filming and John A. Wilson Building for the DC reviewing photography. Some permits may be for major stand, and other areas for individuals with motion pictures and others for group photog- disabilities to view the parade. raphy. Pennsylvania Avenue will remain a de- sirable filming location because of its prominent At any Inaugural Parade people may be lawfully association with national events and its highly standing or sitting next to others who may have symbolic visual character. and express different viewpoints and messages. This expression of views and messages is pro- tected by the First Amendment. ‘‘It is firmly VISITOR CAPACITIES settled that under our Constitution the public The capacity of various park areas was examined expression of ideas may not be prohibited mere- by applying several different square footage op- ly because the ideas are themselves offensive to tions per person. Physical capacities are most some of their hearers’’ (Street v. New York, 394 important when looking at specific venues for U.S. 576, 592 (1969). And courts have properly demonstrations, national celebrations, and identified the federal parkland in Washington,

4 Number and Size of Events along Pennsylvania Avenue permitted events. Densities range from 5 square pected when high levels or pulses occur, such as feet to 50 square feet per person. when multiple tour buses arrive at the same time For sidewalks the capacity ranges from typical and many people are taking photographs or pedestrian uses to how many people can be ac- trying to see a memorial at once. Capacity commodated while watching a parade or march. estimates, including general pedestrian use and For general sidewalk usage NPS assumes 100+ high-capacity events, are shown in Table 1. square feet per person, while for high-use activities, such as a demonstration, the figure may be NUMBER AND SIZE OF EVENTS ALONG closer to 5 square feet per person plus 15%–25% PENNSYLVANIA AVENUE to allow for circulation. For an Inaugural Parade NPS assumes that 40% of the available space is From 2009 to 2012 NPS issued permits for 27 to used for preprogrammed or circulation space 46 special events (average of 33 per year) on and 9% of the sidewalks is used for bleachers sidewalks and areas along Pennsylvania Avenue, (around 8,800 seats). and from 43 to 57 First Amendment demonstrations (average of 54 per year). Estimated partici- The capacity for park areas ranges from how pation per special event ranged from 50 to many people can be accommodated at a site and 54,000 people, and for First Amendment dem- have a high-quality experience in terms of being onstrations from 2 to 86,150 people (see Table able to easily access a memorial, enjoy or photo- 2). In addition to the NPS-permitted activities, graph it, and look at the views and vistas without the DC Homeland Security and Emergency being overly affected by others. The desired ca- Management Agency also issued permits, along pacity could occasionally be exceeded, yet the with the Metropolitan Police (see Table 2). experience might still be acceptable if a special event added to the visitor experience. At most There is an average of one street closure per park areas along Pennsylvania Avenue the opti- weekend from mid-March to mid-October. mal density for the desired experience would be Any governmental regulation of demonstrations 100–200 square feet per person. At this density and related sales activities is subject to First visitors would have sufficient space for contem- Amendment jurisprudence. NPS regulation of plation, reading quotations, or taking photos. At demonstrations and sales activities on federal 50–100 square feet per person the social experi- parkland has been the subject of extensive First ence could be congested for many visitors. A Amendment litigation for many years. density of 50 square feet per person could be ex-

TABLE 1: NPS CAPACITY ESTIMATES FOR PENNSYLVANIA AVENUE SIDEWALKS AND COMMEMORATIVE PARK AREAS General Pedestrian Capacity High-Use Capacity 200 SF/ 100 SF/ 50 SF/ 10 SF/ 5 SF/ Area person person person person person* Pennsylvania Avenue • North sidewalk 673 1,345 2,690 13,450 26,900 • South sidewalk 624 1,247 2,494 12,470 24,940 Meade Plaza and Pennsylvania Avenue Triangle 139 278 556 2,780 5,560 John Marshall Park 331 663 1,326 6,630 13,260 Mellon Fountain 65 130 260 1,300 2,600 FDR Memorial Stone / Front of National Archives 140 280 560 2,800 NA Indiana Plaza 237 474 948 4,790 NA Navy Memorial 351 702 1,404 7,020 NA Franklin Square 146 293 586 2,930 5,630 Freedom Plaza 350 695 130 6,950 13,900 Pershing Park 215 431 862 4,310 NA Total 3,271 6,538 11,816 65,380 NA * NA — not applicable) for some commemorative areas. Experience has shown that densities of 5 SF/person generally do not consistently apply on Pennsylvania Avenue.

5 DEMONSTRATIONS, NATIONAL CELEBRATIONS, AND SPECIAL EVENTS

TABLE 2: SPECIAL EVENTS AND DEMONSTRATIONS ALONG PENNSYLVANIA AVENUE — 2009–2012 NPS Permitted Events 2009 2010 2011 2012

Area No. of Special Events / Participants No. of First Amendment Demon- strations / Participants No. of Special Events / Participants No. of First Amendment Demon- strations / Participants No. of Special Events / Participants No. of First Amendment Demon- strations / Participants No. of Special Events / Participants No. of First Amendment Demon- strations / Participants Pennsylvania Avenue 0 / 0 7 / 3,410 0 / 0 4 / 350 6 / 750 0 / 0 1/500 0 / 0 Sidewalks Meade Statue / Pennsylvania 0 / 0 1 / 2 0 / 0 1 / 12 1 / 25 0 / 0 2/45 0 / 0 Avenue Triangle John Marshall 1 / 200 9 / 14,765 7 / 17,000 4 / 5,700 0 / 0 7 / 1,458 9 / 3,770 8 / 24,760 Park Navy 5 / 7,100 1 / 500 11 / 1,600 1 / 10 0 / 0 10 / 8,950 0 / 0 23 / 3,600 Memorial Freedom Plaza 27 / 53,865 36 / 23,865 27 / 39,297 33 / 22,865 18 / 7,681 34 / 64,465 14 / 9,230 24 / 86,150 Pershing Park 0 / 0 3 / 1,650 1 / 50 0 / 0 2 / 475 6 / 1,245 1 / 2,000 6 / 720 Subtotals 33 / 61,165 57 / 44,192 46 / 57,947 43 / 28,937 27 / 8,931 57 / 76,118 27 / 15,545 61 / 115,230 Total Permitted Activities / 90 / 105,357* 89 / 86, 884 84 / 85,049 88 / 130,775 Estimated Participants * Does not include the 2009 Inaugural Parade.

DC Homeland Security and Emergency Management Agency Events — 2012 DC Permits Type of Events* Time of Year First Amendment / Metropolitan Police About a third of events are races or April, September, and October had 25** runs; remainder are street festivals, four or more events; no events in No data. parades, ceremonies, or street art August ** No participant estimates provided.